McENTEE, Circuit Judge.
Plaintiff, Whittaker Corporation, incorporated and having its principal place of business in California and its Nuclear Metals Division in Massachusetts, initiated this action against defendants, United Aircraft Corporation, Gulf and Western Industrial Products Company, and Ladish Company (hereinafter United, Gulf, and Ladish) for alleged breach of contract and, as against United only, for alleged actionable deceit. United and Gulf are Delaware corporations which have their respective principal places of business in Connecticut and in a state other than California. Ladish is incorporated and has its principal place of business in Wisconsin. Jurisdiction was based on diversity of citizenship
The underlying facts are not in dispute. In 1963 Whittaker's Nuclear Metals Division, located in Concord, Massachusetts, developed a new procedure known as the Rotating Electrode Process (REP) for the manufacture of metal powder. In 1966 United began purchasing powders produced by this process from Whittaker. In September 1970, after receiving a government contract for the manufacture of jet aircraft engines, United ordered one log of IN 100 metal alloy to be produced by Whittaker using the REP procedure in accordance with its specifications. United informed Whittaker that this log would be tested to determine whether it could become a "qualified and approved" source of logs under the "GATORIZING
On or about March 1, 1971, United informed Whittaker that it had become a qualified source of IN 100 logs for use in the GATORIZING
Following Whittaker's qualification, United notified the turbine disc producers who were participating in the program that they could now use Whittaker as a log source. As a result, Whittaker received an oral order for 9,568 pounds of processed alloy from defendant Ladish on April 30, 1971, and, on May 13, 1971, a similar but larger order from defendant Gulf. On June 1, in spite of the fact that United had discovered a weakness in one of Whittaker's
On this background Whittaker sought to obtain personal jurisdiction over all three defendants under § 3(a) and (b) of the Massachusetts long arm statute, M.G.L.A. c. 223A (1973 Supp.) and, additionally, over United under § 3(c).
On appeal Whittaker reasserts the contentions raised below. Turning first to the "transacting any business" section of the statute, § 3(a), the initial issue which must be resolved is whether, as a matter of state law, Massachusetts
In analyzing these criteria we note at the outset that we cannot subscribe to defendants' theory that the instant case is controlled by "Automatic" Sprinkler, supra, since, as we read the complaint and affidavits, it seems clear that defendants' contacts with Massachusetts were more substantial than those found in that case. In "Automatic" Sprinkler
Turning next to the conduct of the individual defendants, as an initial matter we note that United's activities in the forum were clearly more extensive than those of either Ladish or Gulf. In the
On this background the extent of United's participation in the economic life of Massachusetts seems clearly to rise above that of a purchaser who simply places an order and sits by until the goods are delivered. See In-Flight Devices Corporation v. Van Dusen Air, Inc., 466 F.2d 220, 232-233 (6th Cir. 1972). The trial court's characterization of United's conduct as merely "ancillary activity undertaken . . . in connection with [its] order" thus seems somewhat inappropriate. Moreover, it would not be unfair to require United to defend this action in Massachusetts. Given the five year history of prior dealing between the parties, United may not claim surprise at being expected to appear in this forum. Finally, since United's allegedly deceitful representation concerning non-compliance with specifications was made in Massachusetts, an independent basis for jurisdiction under § 3(c) of c. 223A exists. As we noted in construing this provision in Murphy v. Erwin-Wasey, Inc., 460 F.2d 661, 663 (1st Cir. 1972), "if plaintiff alleges that defendants' agents made misrepresentations to him personally within Massachusetts, defendant would without question be within the jurisdiction of the court." United's response that this count fails to state a claim because the complaint contains no allegation that this representation was made with the intent to cause injury does not withstand scrutiny since the pleadings provide that this statement "was a representation of the existing state of mind of United" which was "false with the direct and proximate result that the Plaintiff has been damaged. . . ." Even under the more stringent standards of Rule 9(b), Fed.R.Civ.P., these allegations were sufficient. For all of these reasons, we conclude that the trial court erred in granting United's motion to dismiss.
Whether jurisdiction exists over Ladish and Gulf is more troublesome, however, since both seem to fall more clearly into the category of passive purchasers. First, it is undisputed that neither had any contact with Whittaker in Massachusetts during the pre-qualification period. Only after United informed
From the foregoing, we conclude that the primary contact these two defendants had with Massachusetts was Whittaker's performance of their contracts within the Commonwealth. The remainder of their activities may properly be characterized as "ancillary" to the placement of these orders. While entering into a manufacturing agreement with the resident of a forum has been held to be sufficient to support long arm jurisdiction, see Simpson Timber Co. v. Great Salt Lake Minerals and Chemical Corp., 296 F.Supp. 243 (D.Ore.1969); cf. W. A. Kraft Corp. v. Terrance on the Park, Inc., 337 F.Supp. 206 (D.N.J.1972), this result has been severely criticized as rendering all purchasers subject to long arm jurisdiction. See, e. g., McQuay, Inc. v. Samuel Schlosberg, Inc., 321 F.Supp. 902 (D.Minn.1971); Geneva Industries, Inc. v. Copeland Construction Corporation, 312 F.Supp. 186 (N.D.Ill. 1970); Oswalt Industries, Inc. v. Gilmore, 297 F.Supp. 307 (D.Kan.1969); cf. In-Flight Devices Corporation v. Van Dusen Air, Inc., supra, 466 F.2d at 227, n. 13. Further, the interest of the forum in not discouraging foreign purchasers from dealing with resident sellers for fear of having to engage in litigation in distant courts undercuts such an expansive interpretation. See, e. g., Fourth Northwestern National Bank of Minneapolis v. Hilson Industries, Inc., 264 Minn. 110, 117 N.W.2d 732, 736 (1962); Conn v. Whitmore, 9 Utah.2d 250, 342 P.2d 871, 874-875 (1959). For these reasons, as well as the absence of any Massachusetts authority construing c. 223A § 3 in so broad a manner, we conclude that the trial court did not err in granting Ladish's and Gulf's motions to dismiss.
One further matter remains. As an alternative to the dismissal of any of the defendants, Whittaker argues that it is entitled to discovery of jurisdictional facts and, in particular, to investigate whether United was acting as an agent for either Gulf or Ladish.
The order of the district court dismissing the suit as to Ladish Company and Gulf and Western Industries Products Company is affirmed, and the order of the district court dismissing the suit as to United Aircraft Corporation is vacated and that part of the case is remanded for further proceedings consistent with this opinion.
"Step One: The components of IN 100 alloy are melted together in accordance with United specifications by an alloy producer `qualified and approved' by United who ships the resulting bars to a metal powder producer.
Step Two: The metal powder producer (in this case, the plaintiff), reduces the ingots to metal powder, vacuum-packs the powder in a steel can or `billet' manufactured in accordance with United specifications, and ships the billet to a log producer `qualified and approved' by United.
Step Three: The log producer (in this case, a subcontractor of the plaintiff), in accordance with United specifications and using dies owned by United, heats, compresses, and extrudes the steel can or billet into a `log' some ten feet long, seven inches in diameter, and weighing approximately 950 pounds.
Step Four: The log producer sends the log to a machine shop which cuts off the steel billet jacket from the log and then cuts the log into smaller segments called `mults' for shipment to a turbine disc producer `qualified and approved' by United.
Step Five: The turbine disc producers (in this case, Ladish and Gulf), in accordance with United specifications, forge the mults into turbine discs for jet aircraft engines for F-14/F-15 fighters being manufactured by United under United States Government Contract No. F33657-70-C-0660."
"A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's
"58. Plaintiff's adherence to Defendant United's hereinabove described `GATORIZING
"59. The issuance of the said impossible specification Section E101 by Defendant United and the requirement of Defendants United, Gulf and Ladish that Plaintiff adhere to such impossible specification are breaches of the aforesaid Defendants' contracts with Plaintiff."